To the Board of Directors

of Ant Kalıp Sanayi ve Ticaret Anonim Şirketi

December 21, 2020

          Dear Sir/Madam,

This legal information note has been prepared with the purpose of explaining the scope of the requirement to establish a website of companies which are subject to independent audit, and the obligations of companies within this context.

As known, in accordance with the new Turkish Commercial Code (the “Code”), numbered 6102, which came into force on July 1, 2012, and the Regulation Regarding Websites to be Established by Corporations (the “Regulation”), corporations which are subject to independent audit have become obligated to establish a website and publish the announcements which are legally required to be made on this website within the scope of information society services and the principle of transparency. Corporations which are subject to independent audit are required to perform these obligations within three months as of the date they became subject to independent audit. The rules which the website shall be subject to have been set out in article 1524 of the Turkish Commercial Code.

The content which is to be published on the website of the company must be published within certain periods, in order to adhere to the stipulated obligations. If a term has been especially specified in the Turkish Commercial Code, the said content must be published on the company website within that period. Where no specific term has been set out, the content must be published on the company website within a maximum of five days as of the date the procedure or event, which forms the basis of the content, was occurred. If the basis of the content requires registration or announcement, the content must be published on the company website within a maximum of five days as of the date the registration or announcement was made.

Therefore, effective as of October 1, 2013, companies which are subject to independent audit, have become obligated to establish a website and to allocate a certain section of the website for the stipulated content.

Unless a longer term has been stipulated by law, the content which has been placed on the company website must remain on the website for at least 6 months. Otherwise, the said content shall be deemed not to have been published on the website at all.

Sanctions:

It has been stated in article 1524 that, in case of failure to comply with such obligations, the relevant resolutions shall be subject to cancellation and that all of the consequences of failure to comply with the legislation shall be faced, and that the managers and members of the Board of Directors at fault in relation to the said situation, shall be deemed liable for this violation. Additionally, as per article 562 paragraph 12 of the Turkish Commercial Code, members of the managing body of a company which has failed to establish a website, shall be imposed a judicial fine of the equivalent of between one-hundred and three-hundred days, and that the members of the managing body of a company which has failed to duly publish the content on the website shall be imposed a judicial fine of up to the equivalent of one-hundred days.

Important Reminders:

The section of the company website which has been set aside for information society services needs to be open to the access of everyone, unconditionally. In the event that this right is restricted by the company and thus the said principle is violated, anyone shall be able to file a lawsuit for the removal of the restriction.

It is not sufficient just to establish a website in accordance with the Legislation and the Regulation, but also necessary to make the transactions such as publishing, changing and renewing the necessary content (information and documentation) in this website by way of using safe electronic signature(s) and time stamp(s). It shall be appropriate that an authorized signatory mentioned in the signature circular of the company owns such safe electronic signature, considering the fact that safe electronic signature results the same legal consequences that the handwriting signature do.

A determination needs to be made by TÜBİTAK as to whether the website possesses the technical and security criteria. Therefore, we recommend that companies have the technical qualifications and back-ups of the websites they are to establish tested by a company which has been licensed by TÜBİTAK, or obtain support for both backing-up and setting up the website from a Central Registration Agency, and obtain confirmation that the website meets the legal requirements.         

The expression “directed message” shall be written in brackets, together with a date, at the top of the content published in the website’s relevant section allocated for information society services. The directed message shall be created with a time stamp, and changed in the same manner.

The companies can comply with the above-mentioned legal requirements either on their own or via the service providers. In case of getting assistance from a service provider, the service provider needs to be informed of the content which needs to be placed in the website’s relevant section allocated for such purposes as per the Regulation.

In order for the website’s relevant section allocated for information society services is easily found by internet search engines via the website or service providers, a phrase of “Information Society Services” is stated on the main page of the website.

The companies enable the access to the relevant information and documentation directly in the website or by directing the internet users to the service providers via the link created in the website by the service providers.

The content published in the website as per the Regulation needs to be electronically archived for a term of five years upon the end of its publishing on the website, unless a longer term is provided in the legislation. In case T.R. Customs and Trade Ministry requires the companies to transfer the content to MERSİS (central registration system) and/or other databases via a service provider, this content can be transferred to the relevant database in accordance with the format and standards set by the said ministry. Safe electronic signature and time stamp need to be used in archiving the content published in the website.

The list of the content which companies are required to place on their websites are presented below. It is necessary to state that, in the event that the legal circumstances set out in the below articles have yet to come into existence for your company, there is no obligation to publish announcements on the relevant matter.

Information Required to be on the Website Permanently 

  1. The MERSİS (central registration system) number, commercial title and the headquarter of the company, the amount of capital which has been undertaken and which has been paid, and the names and surnames of the chairman and members of the Board of Directors in joint stock companies, the managers in limited companies, and the directors in limited partnerships, where the capital has been divided into shares.
  1. In the event that a legal entity is elected as a member of the Board of Directors in a joint stock company, or as a manager in a limited company, a statement that the real entity determined by the legal entity has been registered and announced together with the legal entity, the MERSİS number, commercial title and headquarter of the elected legal entity, and the name and surname of the real entity who has been registered together with the legal entity.
  1. The name, surname / title and place of residence / headquarter of the auditor which has been appointed, together with any registered branches it may have.
  1. In the event that there have been any changes in the published content, the new version of the said content shall be published on the website on the date the change has been made.

The matters which are required to be published by the company on the website for a minimum of six months: 

  1. In the event of a merger, the merger agreement, merger report, the financial statements and annual activity reports for the last three years, and where necessary the interim financial statements shall be published on the website within thirty days prior to the General Assembly decision, in order to be presented for the examination of the shareholders.
  1. The announcement made in the Trade Registry Gazette (three times with interval of seven days in between each announcement) stating that the companies taking part in the merger may make a demand from their creditors that their receivables be secured, shall be published on the website within a maximum of five days as of the date the first announcement was published in the Trade Registry Gazette.
  1. In the event of a division, each company taking part in the division shall publish the division agreement or plan, division report, the financial statements and annual activity reports for the last three years, and interim financial statements (if any) and the announcement concerning where these documents have been consigned to and where they are being kept in a manner which is ready to be examined, together with a statement pointing to the right to examine them, on the website, two months prior to the date of the decision to carry out the division.
  1. The announcement made in the Trade Registry Gazette (three times with interval of seven days in between each announcement) concerning the invitation to be made by the companies which are taking part in the division, to creditors to give notice of their receivables and demand that these be secured, shall be published on the website within a maximum of five days as of the date the first announcement was published in the Trade Registry Gazette.
  1. Where a lawsuit has been instigated against the company for its annulment, this matter shall be published on the website within a maximum of five days as of the date it was announced in the Trade Registry Gazette.
  1. The finalised decision of the court in the lawsuit which was instigated against the company for its annulment shall be published on the website within a maximum of five days as of the date it was announced in the Trade Registry Gazette.
  1. The announcement regarding the call for the General Assembly meeting shall be published on the website on the date it was announced in the Trade Registry Gazette, at the latest.
  2. In the event that the discussion on the financial statements and the matters related to this is postponed until the following month at a General Assembly meeting of a joint stock company, the announcement made to shareholders in this regard shall be published on the website within a maximum of five days as of the date the decision to postpone was taken.
  1. The minutes of the General Assembly meeting of the company and the minutes of the special meeting of the privileged shareholders of the company shall be published on the website within a maximum of five days as of the date of the General Assembly meeting.
  1. Announcements concerning representatives, independent representatives and corporate representation shall be published on the website on the date the announcement was published.
  1. The matter that an action for cancellation or an action for nullity has been brought against a General Assembly decision, and the date of the hearing, shall be published on the website within a maximum of five days as of the date of the announcement which has been made in accordance with the Articles of Association.
  1. The finalised decision of the court concerning the cancellation or nullity of a General Assembly decision shall be published on the website within a maximum of five days as of the date it has been registered.
  1. The General Assembly decision concerning the amendment of the Articles of Association shall be published on the website within a maximum of five days as of the date it was announced in the Trade Registry Gazette.
  1. Board of Directors’ resolution regarding the capital increase in the registered capital system, the new version of the Articles of Association showing the issued capital, the nominal values, types and quantities of the new shares, whether the new shares are privileged or not, the limitations concerning the use of privileged shares and rights of pre-emption, and the rules concerning the implementation of this, shall be published on the website within a maximum of five days as of the date the announcement has been duly made, in accordance with the Articles of Association.
  1. Board of Directors’ resolution concerning the permission to use the right to acquire new shares shall be published on the website within a maximum of five days as of the date it has been announced in the Trade Registry Gazette.
  1. In the event that the registered capital is to be decreased, the detailed explanations concerning the reasons for and the purpose of the reduction, and the manner in which the reduction is to be performed, shall be published on the website within a maximum of five days as of the date the call for the General Assembly meeting, containing these explanations, has been announced in the Trade Registry Gazette.
  1. The announcement made to creditors in the Trade Registry Gazette (three times with interval of seven days in between each announcement) upon the General Assembly decision regarding capital decrease shall be published on the website within a maximum of five days as of the date the first announcement was made.
  1. The call and warning sent to a shareholder who is in default, that he / she is required to pay the amount of the share which is the subject of the default within one month, that otherwise he / she shall have his / her rights connected to the relevant shares removed, and that a contract penalty shall be demanded, shall be published on the website within a maximum of five days as of the date this call and warning was published in the Trade Registry Gazette. In the event that the call and warning has been notified to the holders of shares which are in the name of the holder, by registered and reply paid letter, this call and warning shall be published on the website within a maximum of five days as of the date the registered and reply paid letter was sent.
  1. Board of Directors’ resolution for printing bearer share certificates shall be published on the website within a maximum of five days as of the date it was announced in the Trade Registry Gazette.
  1. Announcements made in the Trade Registry Gazette (three times with interval of seven days in between each announcement) to other creditors, who could not be determined as creditors from the company books or other documentation, or whose places of residence are not known and calls to them to notify the liquidators of their receivables, stating that the company has been liquidated, shall be published on the website within a maximum of five days as of the date the first announcement was published.
  1. An explanation concerning the earning or disposal of shares by an enterprise which is a part of the group of companies, shall be published on the website within a maximum of five days as of the date it was made.
  1. Announcements made in the Trade Registry Gazette concerning the deletion of vessels from the register of vessels and the period which has been determined for this, where it is not known who the owners and other beneficiaries of the vessels are, or where the places of residence of the owners and other beneficiaries are not known, shall be published on the website within a maximum of five days as of the date they were published in the Trade Registry Gazette.
  1. The announcement to be made by the members of the Board of Directors and directors of the corporation and of the enterprises which are a part of the group of companies concerning their share in the capital of the commercial companies in which they, their spouses and the children under their guardianship hold a minimum of twenty percent of the capital, shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. A dominance agreement made between companies shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. In the event that the number of shareholders / partners within the company drops to one, or the company is formed with only one shareholder / partner, the fact that the company has one shareholder / partner and the name and surname, place of residence and information concerning the nationality of the sole shareholder / partner, shall be published on the website within a maximum of five days as of the date they were announced in the Trade Registry Gazette.
  1. The Articles of Association and amendments thereto, shall be published on the website within a maximum of five days as of the date the establishment of the company or the amendment(s) were announced in the Trade Registry Gazette.
  1. In the event that an entity or real property is taken over or leased within two years as of the registration of the company, for a fee in excess of one tenth of the capital, the agreement for the takeover or leasing procedure shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. The resolution of the Board of Directors or the Board of Managers showing the persons who are authorised to represent the company and the manner in which they shall represent the company, shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. Internal directives concerning the principles and procedures of the operation of the General Assembly in joint stock companies shall be published on the website within a maximum of five days as of the date they were announced.
  1. The report showing the reasons for the limitation or removal of the rights of pre-emption of the Board of Directors, the reasons for new shares being issued as premium and no premium stock and how the premium has been calculated, shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. The report the capital decrease, which has been prepared by the Board of Directors / Board of Managers and approved by the General Assembly, and which shows the reasons and purpose for the capital decrease, and the manner in which the capital shall be decreased, shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. The call by the Board of Directors / Board of Managers for the paying of the share prices shall be published on the website within a maximum of five days as of the date it was announced.
  1. Board of Directors’ resolution regarding the cancellation of the share certificate of a shareholder who is in default, shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.
  1. In the event that meetings of the Board of Directors or the Board of Managers, and the General Assembly are carried out in the electronic environment, or there is participation in these meetings through the electronic environment, the technical report, where the suitability of the electronic environment vehicles for participation is proven, shall be published on the website within a maximum of five days as of the date it was published in the Trade Registry Gazette.

We do hope that this legal memorandum contains the necessary and sufficient information regarding the issue. However, should you have any further queries or comments concerning the matters mentioned above, please do not hesitate to contact us.

Kind regards,

Güzeldere I Balkan Law Firm